Citation Nr: 1015910
Decision Date: 04/30/10 Archive Date: 05/06/10
DOCKET NO. 07-12 194 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent
for the Veteran's service-connected tinnitus, to include on
an extraschedular basis.
2. Entitlement to a compensable rating for the Veteran's
service-connected bilateral hearing loss.
3. Entitlement to a rating in excess of 10 percent for the
Veteran's service-connected residuals of basal cell carcinoma
of the face, upper back, neck, arms and hand.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Benjamin Diliberto, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1976 to December
1981, from June 1996 to March 1999 and from October 2001 to
September 2003.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from January 2005 and January 2007 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Los Angeles, California, that denied the
benefit sought on appeal. The Veteran appealed those
decisions and the case was referred to the Board for
appellate review.
In his Substantive Appeal (VA Form 9) the Veteran requested a
hearing before the Board. However, the Board notes that this
request was specifically withdrawn in May 2008.
The issues of entitlement to compensable rating for bilateral
hearing loss and to a rating in excess of 10 percent for
residuals of basal cell carcinoma are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's tinnitus is assigned a 10 percent rating, the
maximum schedular rating authorized under 38 C.F.R. § 4.87,
Diagnostic Code 6260, and that condition does not present
such an exception or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards.
CONCLUSION OF LAW
There is no basis for the assignment of a schedular or
extraschedular evaluation in excess of 10 percent for the
Veteran's service-connected tinnitus. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.321(b)(1), 4.87, Diagnostic Code 6290 (2009); Smith v.
Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Bagwell v. Brown,
9 Vet. App. 337 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before addressing the Veteran's claim on appeal, the Board is
required to ensure that the VA's "duty to notify" and
"duty to assist" obligations have been satisfied. See
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2007). The notification obligation in this case was met by
way of letters from the RO to the Veteran dated January 2004,
July 2004, November 2005, March 2006 and June 2008. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328
(Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473
(2006).
The Board notes that the United States Court of Appeals for
Veterans Claims (Veterans Court), in Vazquez-Flores v. Peake,
22 Vet. App. 37 (2008), clarified VA's notice obligations in
increased rating claims. The Federal Circuit recently
reversed the Veterans Court's decision in Vazquez-Flores,
finding that VA is not required to tailor § 5103(a) notice to
individual Veterans or to notify them that they may present
evidence showing the effect that worsening of a service-
connected disability has on their employment and daily life
for proper claims adjudication. For an increased rating
claim, section § 5103(a) now requires that the Secretary
notify claimants generally that, to substantiate a claim,
they must provide, or ask the Secretary to obtain, medical or
lay evidence demonstrating a worsening or increase in
severity of the disability. See Vazquez-Flores v. Peake, 22
Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v.
Shinseki, 580 F.3d 1270 (Fed. Cir. 2009 (holding that notice
specific to individual Veterans is no longer required in
increased compensation claims). The appeal for higher
initial ratings originates, however, from the grant of
service connection for these disabilities. Consequently,
Vazquez-Flores is inapplicable. Nevertheless, a June 2008
letter to the Veteran did contain the information required
under Vazquez-Flores.
The RO also provided assistance to the Veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances of this case. In
addition, the Veteran and his representative have not made
the RO or the Board aware of any additional evidence that
needs to be obtained in order to fairly decide this appeal
and have not argued that any errors or deficiencies in the
accomplishment of the duty to notify or the duty to assist
have prejudiced the Veteran in the adjudication of his
appeal. Therefore, the Board finds that the RO has satisfied
the duty to notify and the duty to assist and will proceed to
the merits of the Veteran's appeal.
The Veteran has claimed entitlement to a rating in excess of
10 percent for his service-connected tinnitus. Essentially,
the Veteran contends that the current evaluation assigned
does not accurately reflect the severity of that condition.
The Veteran first claimed entitlement to service connection
for tinnitus in August 2005. A July 2006 rating decision
denied entitlement to service connection. However, in
January 2007 the RO issued a Decision Review Officer Decision
granting service connection for tinnitus and assigning an
evaluation of 10 percent effective from October 1, 2003. The
Veteran submitted a Notice of Disagreement (NOD) with that
rating in March 2007. A Statement of the Case (SOC) was
issued in December 2007 and later that month the Veteran
filed a Substantive Appeal (VA Form 9).
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected condition
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set in the Schedule for
Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1.
Separate diagnostic codes identify various disabilities and
the criteria for specific ranges. VA has a duty to
acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589
(1991). If two disability evaluations are potentially
applicable, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required by that evaluation. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.1. After careful
consideration of the evidence, any reasonable doubt remaining
will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
If there is disagreement with the initial rating assigned
following a grant of service connection, separate ratings can
be assigned for separate periods of time, based on the facts
found. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Reasonable doubt as to the degree of disability will be
resolved in the veteran's favor. 38 C.F.R. § 4.3.
Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code
6260, which was revised effective June 13, 2003, to clarify
existing VA practice that only a single 10 percent evaluation
is assigned for tinnitus, whether the sound is perceived as
being in one ear, both ears, or in the head. 38 C.F.R.
§ 4.87, Diagnostic Code 6260, note 2 (2009).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U.S. Court
of Appeals for Veterans Claims (CAVC) held that the pre-1999
and pre-June 13, 2003 versions of Diagnostic Code 6260
required the assignment of dual ratings for bilateral
tinnitus. VA appealed this decision to the U.S. Court of
Appeal for the Federal Circuit. In Smith v. Nicholson, 451
F.3d 1344 (2006), the Federal Circuit concluded that the CAVC
erred in not deferring to the VA's interpretation of its own
regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260,
which limit the Veteran to a single disability rating for
tinnitus, regardless of whether the tinnitus is unilateral or
bilateral. Diagnostic Code 6260 provides that a maximum 10
percent evaluation is warranted for tinnitus.
Therefore, a claim for a higher rating for tinnitus on a
schedular basis, whether the Veteran seeks higher than 10
percent in one ear, or separate 10 percent ratings for each
ear, must be denied under Diagnostic Code 6260. As the
disposition of this claim is based on the law, and not the
facts of the case, the claim must be denied based on a lack
of entitlement under the law. See Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994).
The Veteran, through his representative, has indicated that
he believes an extraschedular rating is warranted for his
service-connected tinnitus. The Board has considered whether
referral for an extraschedular rating is appropriate.
However, neither the Veteran nor his representative have
presented any evidence indicating that the rating criteria
are inadequate to evaluate the Veteran's tinnitus or that
tinnitus alone has caused marked interference with employment
or necessitated frequent periods of hospitalization and there
is no such evidence in the claims file. Accordingly, the
Veteran's claim does not present such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards and the Board
is not required to remand this claim to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1)
(2009). See Bagwell v. Brown, 9 Vet. App. 337, 338-39
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to a rating in excess of 10 percent for tinnitus,
including on an extraschedular basis, is denied.
REMAND
The Veteran has also claimed entitlement to a compensable
rating for service-connected bilateral hearing loss and a
rating in excess of 10 percent for his service-connected
residuals of basal cell carcinoma. The Board finds that
additional development is necessary with respect to the
Veteran's claims. Accordingly, further appellate
consideration will be deferred and this matter is remanded to
the RO/AMC for further action as described below.
The Veteran has argued that the current evaluations assigned
for his bilateral hearing loss and residuals of basal cell
carcinoma do not accurately reflect the severity of those
disabilities. The Board notes that the Veteran's most recent
VA examinations for these conditions were in November 2006
and September 2004 respectively. In a March 2010 statement
from the Veteran's representative the Veteran indicated that
both of these conditions are worse than when originally rated
and that the prior examinations, more than 3 and 5 years ago
respectively, do not indicate the severity of those
conditions.
The United States Court of Appeals for Veterans Claims (the
Court) has held that where a veteran claims that a disability
is worse than when previously rated, and the available
evidence is too old to adequately evaluate the current state
of the condition, VA must provide a new examination. See
Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Because the
Veteran has indicated that his bilateral hearing loss and
residuals of basal cell carcinoma result in significant
limitations not indicated by the Veteran's earlier
examinations, the Board finds that new examinations are
necessary to reach a decision on the Veteran's claim.
In order to give the Veteran every consideration with respect
to the present appeal, further development of the case is
necessary. This case is being returned to the RO via the
Appeals Management Center (AMC) in Washington, D.C., and the
Veteran will be notified when further action on his part is
required. Accordingly, the case is REMANDED for the
following action:
1. The RO/AMC should contact the Veteran
and inquire whether he has undergone any
treatment for his bilateral hearing loss
since November 2006, or any treatment for
his residuals of basal cell carcinoma
since September 2007. If the Veteran
indicates that he has received any
treatment or evaluations, the RO/AMC
should obtain and associate those records
with the claims file.
2. The Veteran should be afforded an
appropriate examination to determine the
severity of his bilateral hearing loss.
Any and all indicated evaluations, studies
and tests deemed necessary by the examiner
should be accomplished. The examiner is
requested to review all pertinent records
associated with the claims file, and
indicate having done so in his report.
Following this review and examination, the
examiner is requested to report complaints
and clinical findings pertaining to the
Veteran's condition in detail. In
addition, the examiner must assess the
effect of the Veteran's hearing loss on
his daily activities and industrial
ability. A clear rationale for all
opinions is necessary and a discussion of
the facts and principles involved would be
of consideration assistance to the Board.
3. The Veteran should also be afforded an
appropriate examination to determine the
severity of his basal cell carcinoma and
any residuals thereto. Any and all
indicated evaluations, studies and tests
deemed necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records associated
with the claims file, and indicate having
done so in his report. Following this
review and examination, the examiner is
requested to report complaints and
clinical findings pertaining to the
Veteran's condition in detail. A clear
rationale for all opinions is necessary
and a discussion of the facts and
principles involved would be of
consideration assistance to the Board.
4. When the requested development has
been completed the case should again be
reviewed by the RO, to include
consideration of any additional evidence
submitted. If the benefits sought are not
granted the Veteran and his representative
should be furnished a Supplemental
Statement of the Case, and be afforded a
reasonable opportunity to respond before
the record is returned to the Board for
further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs